All people are equal under the law, but the provisions relating to prosecution sanctions in India would suggest that some people are more equal than others. Section 19 of the Prevention of Corruption Act prevents courts from taking cognizance of offences allegedly committed under the Act by a public servant without prior sanction of the government. And Section 197 of the Code of Criminal Procedure lays down the general requirement of prior sanction while prosecuting public servants. Such provisions were conceived to ensure that public servants are not harassed and their work not stymied by vexatious and frivolous complaints. But in practice, these protective measures have functioned as a shield against prosecution, encouraging dishonest bureaucrats and ministers to flout the law with impunity. The Supreme Court's verdict on Tuesday, in a case related to the 2G scam, contains two important rulings relating to prosecution sanctions. First, by holding that Janata Party President Subramanian Swamy had the locus standi to seek sanction to prosecute former Telecom minister A. Raja, the Court has empowered all citizens to press for action against those public servants suspected of corrupt practices. Secondly, the Court has laid down that sanction for prosecution would be deemed to have been granted if the competent authority fails to take a decision within a period of four months. This is in broad consonance with the directives in the landmark Vineet Narain case, where the Supreme Court had ruled that while a maximum of three months for grant of sanction must be strictly adhered to, an additional one month may be allowed in cases where consultation with the Attorney General is required.
The sanction is routinely denied; in cases where it is granted, it is often after considerable delay. In the 2G spectrum scandal, for instance, Mr. Swamy wrote to the Prime Minister in November 2008 seeking sanction to prosecute Mr. Raja only to be informed six months later that this would be premature as the CBI was still investigating the matter. While Tuesday's ruling is a huge setback to the UPA, its real significance lies in the attention it has drawn to a larger question — should prior sanction be required to prosecute public servants at all. Surely, the decision about whether a particular prosecution is vexatious or not is better left to the judiciary. Significantly, the Lokpal and Lokayutas Bill 2011, passed by the Lok Sabha two months ago, had dispensed with prior sanction for launching prosecution in cases inquired into by the Lokpal. The idea that the law must differ for public servants and private citizens is an anachronism, one that has no basis in principle and has no defence in practice.